Judgment Shiva Kirti Singh and Dharnidhar Jha JJ. 1. In all the three appeals there is one appellant each. All the three appellants have been convicted under Sec.302/34 of the IPC and sentenced to rigorous imprisonment for life by the impugned judgment and order dated 25.4.2006 passed by Additional Sessions Judge Fast track Court II, Araria in Sessions Trial No. 484 of 2000, Trial No. 080 of 2003 arising out of Araria PS Case No. 135 of 1999 dated 20.3.1999. 2. The fardbeyan (Ext.5) was recorded on 20.3.1999 at 8.00 am at Araria Hospital disclosing that the informant, PW 11- Indradeo Tatma, had heard cries of his uncle, the deceased Deo Narayan Tatma on 19.3.1999 at 5.30 pm while he was at his house. He and the prosecution witnesses, namely, PW 1, Mahanand Tatma, PW 3, Krityanand Tatma, PW8, Sanjay Kumar and PW 10, Nirmala Devi ran to the place where Deo Narayan Tatma was lying injured in pool of blood and brought him to his house. It is alleged in the fardbeyan that the injured, Deo Narayan Tatma was found fallen near the field of Fudan Singh on a non- metal road. That field had sunflower plants. It was alleged that on reaching that place, the informant, Indradeo tatma saw appellant, Manoj Singh and appellant, Sunil Singh running away towards west through the wheat fields. He attempted to apprehend them but they managed to run away. When the injured was brought to home then in front of his son, PW 8-Sanjay Kumar, his wife, PW10- Nirmala Devi, PW 1, Mahanand Tatma and PW3, Krityanand Tatma, he disclosed in injured condition, that appellant, Manoj Singh and appellant, Sunil Singh had caught him and had uttered why he did not allow water of the canal for irrigating their field, they will not allow him to live any more and so uttering indiscriminate assault was made with chura on abdomen, neck and hand. He allegedly further stated that in attempt to save himself, he cried and sustained several cut injuries on the hand and on seeing the witnesses, appellant, Manoj Singh and appellant, Sunil Singh had run away towards west. 3. According to the F,IR and the prosecution case, the injured was brought to Hospital on a handcart (Thela). His condition became serious and he stopped talking and in course of treatment he died at about 1.30 A.M. in the night. 4. 3. According to the F,IR and the prosecution case, the injured was brought to Hospital on a handcart (Thela). His condition became serious and he stopped talking and in course of treatment he died at about 1.30 A.M. in the night. 4. The formal FIR (Ext.4) appears to have been drawn on 20.3.1999 at 9.00 A.M. and it appears to have been received in court on 22.3.1999. After investigation, chargesheet was submitted against the two FIR named accused, appellant- Manoj Singh and appellant-Sunil Singh and also against the third appellant- Om Prakash Singh, who is not named in the FIR. They pleaded their innocence and denied the charges. In support of its case, the prosecution altogether examined 16 witnesses including PW 15, Dr Arun Kumar Choudhary, who held the autopsy and proved the post mortem report as Ext.3. PW 12 has been declared hostile. PWs 13, 14 and 16 are formal witnesses, who have proved the inquest report, signature on inquest, formal FIR and fardbeyan and some signatures on those documents. PWs 1 to 11 are said to be material witnesses but on scrutiny, it is found that the material witnesses are only PWs 1, 3, 8, 10 and 11 i.e. the informant and four others named in the FIR whereas PWs 2, 4, 5, 6, 7 and 9 have been examined on same lines as deposed by the other witnesses. 5. At the outset, it is worth noting that there is no eye witness of the actual assault upon the deceased and the case is based upon alleged dying declaration of the deceased, Deo Narayan Tatma before the material witnesses, his family members and close relations, PWs 1, 3, 8, 10 and 11. Besides the alleged dying declaration, the prosecution has tried to rely upon the circumstance that the witnesses saw the appellants fleeing away from the place of occurrence. The prosecution has also alleged motive in the fardbeyan itself that because the deceased had denied use of canal water for irrigation of lands of the accused persons, hence he had been assaulted. 6. The prosecution has also alleged motive in the fardbeyan itself that because the deceased had denied use of canal water for irrigation of lands of the accused persons, hence he had been assaulted. 6. Learned counsel for the appellants had taken us through the deposition of the aforesaid five witnesses including the informant carefully and in respect of the alleged dying declaration he has demonstrated that according to the FIR and PW 11 the dying declaration was recorded at the house of the deceased whereas according to PWs 1, 3, 8 and 10, the deceased in the injured condition, made some declaration disclosing name of the appellants and some other facts at the very place of occurrence which was the sunflower field because according to the witnesses, some blood had fallen at the sunflower field as well as nearby non-metal road. While taking us through the evidence of those material witnesses, learned counsel for the appellants had further shown that the words and details of alleged dying declaration as given in the fardbeyan and more or less reproduced by PW 11 in paragraph 2 of his deposition have not been fully supported by the other material witnesses inasmuch as in paragraphs 1 and 3 of his deposition PW 8 has stated that as per the dying declaration not only Sunil Singh and Manoj Singh but the appellant Om Prakash Singh also assaulted the deceased with knives and the deceased had allegedly disclosed that he had been assaulted because father of accused Sunil Singh, Bhola Singh had borrowed Rs. 7000/- from him and had not only refused to return it when demanded but Sunil had threatened to teach him a lesson. Thus, PW8, the son of the deceased, has attributed a materially different dying declaration of the deceased changing the alleged motive and implicating another accused Om Prakash Singh. 7. Continuing with the aforesaid submission learned counsel for the appellants has shown that PW 10, the wife of the deceased, in paragraphs 1 and 4 of her deposition has stated that the deceased named three accused persons as assailants but without any mention of any weapon or part of his body where he had been assaulted by them. She did not include the motive disclosed in the FIR as a part of dying declaration of the deceased. She did not include the motive disclosed in the FIR as a part of dying declaration of the deceased. PW 1, Mahanand Tatma is like the informant another nephew of the deceased and according to him, the deceased disclosed at the place of occurrence that he was coming from Kushiar village and one Pradip Singh came out from the sunflower field and stopped him, thereafter Manoj, Sunil and Om Prakash, the appellants, started assaulting him with knives. According to the last material witness, PW 3- Krityanand Tatma, the deceased while in injured condition at the place of occurrence disclosed the name of appellants- Manoj and Sunil and that they had assaulted him indiscriminately with knives and on seeing others coming, they had fled towards west. He has further added to the dying declaration of the deceased that he disclosed the name of the appellant, Om Prakash as the person who was standing at the place of occurrence at the time of assault by knives. 8. Learned counsel for the appellants has referred to a decision of the Supreme Court in the case of Ram Nath vs. State of Madhya Pradesh, 1953 Cri. L.J. 1772, to submit that even when the dying declaration in that case had been recorded by a 1 st class Magistrate the Apex Court cautioned that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath, is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might be drawing upon his imagination. He has also in the same connection referred to a judgment of the Supreme Court in the case of Bhaiyan vs. State of Madhya Pradesh, (1978) 1 SCC 149 . In that case the dying declaration was not mentioned in the FIR but the Apex Court has clearly indicated that when the alleged dying declaration gives out different versions and the oral evidence is discrepant with dying declaration, it is not safe to act on such dying declaration. 9. In that case the dying declaration was not mentioned in the FIR but the Apex Court has clearly indicated that when the alleged dying declaration gives out different versions and the oral evidence is discrepant with dying declaration, it is not safe to act on such dying declaration. 9. It is not necessary to dwell more on the legal aspect of the controversy because on facts it is found that there are different versions of dying declaration coming from the mouth of different witnesses as noticed above, and the earliest version in the fardbeyan that deceased gave out the alleged details relating to assault upon him by two of the appellants was made at his house when he was shifted from the place of occurrence, is not supported by other witnesses. It is further found that the discrepancies are not of such minor nature which can be attributed to lapse of memory due to passage of time. Some of the witnesses have included the name of appellant Om Prakash Singh as a part of alleged dying declaration whereas his name is not mentioned in the fardbeyan. PW 1, who is also a witness mentioned in the FIR, has also included the name of one Pradip Singh who was not found involved in the offence and not sent up. Thus, it is clear that the dying declaration alleged by the prosecution in this case is not trustworthy and it is not safe to rely upon the same for convicting the appellants. 10. Thereafter, the prosecution rests upon alleged circumstance that the three appellants were seen fleeing away from the place of occurrence. So far as this circumstance is concerned, it has to be considered in the light of a spirited submission raised on behalf of the appellants that there is undue delay in lodging of the FIR and recording of fardbeyan. The occurrence allegedly took place in the evening hours of 19.3.1999 at about 5.30 pm. The injured was taken to Araria Hospital in about half an hour time. The fardbeyan, as noted earlier, was recorded on the next date i.e. 20.3.1999 at 8.00 A.M. at Araria Hospital, much after the death of the injured at about 1.30 A.M. In this regard the evidence of PW 11, the informant, in paragraph 7 at page 51 of the paper book is significant. The fardbeyan, as noted earlier, was recorded on the next date i.e. 20.3.1999 at 8.00 A.M. at Araria Hospital, much after the death of the injured at about 1.30 A.M. In this regard the evidence of PW 11, the informant, in paragraph 7 at page 51 of the paper book is significant. According to him, the injured even after reaching the Hospital was conscious for half or one hour and he was talking even in Hospital; the Hospital is situated at a distance of 100 cubic from the Police Station and he claimed that he reached the Police Station and informed the Sub Inspector of Police who told him to first take care of the treatment and that soon the Sub Inspector would be coming to the Hospital. He has simply stated that he did not give his Bayan in the Police Station on that occasion at about 6.00 or 6.30 in the evening. He has further stated that the Sub Inspector of Police came to the Hospital on 19.3.1999 at about 8.00 P.M but statement of the informant was taken for the first time in the morning of 20.3.1999 at 8.00 A.M. It was also highlighted by learned counsel for the appellants that there is absolutely no explanation why the Sub Inspector would not record the statement of the informant even in the Hospital at 8.00 P.M. where allegedly PW 8, the son of the deceased, PW 1, another nephew of the deceased, PW 2, brother-in-law of the deceased, PW 4 as well as PW 9, the son-in-law of the deceased were all present to attend upon the injured. He submitted that even the first explanation of the informant that the Sub Inspector did not record his statement at the Police Station at 6.00/6.30pm apparently because the informant was required to look after the treatment of the injured, is not convincing because there were several similarly placed persons and close relations of the injured available nearby in the Hospital and one or the other could have given fardbeyan if the name of the appellants and all details were already known. 11. In view of the aforesaid submissions and facts, a very cautious approach has to be adopted in examining the evidence of material witnesses for finding out whether the appellants can be held guilty of the alleged offence only on the basis of circumstantial evidence. 11. In view of the aforesaid submissions and facts, a very cautious approach has to be adopted in examining the evidence of material witnesses for finding out whether the appellants can be held guilty of the alleged offence only on the basis of circumstantial evidence. On adopting such a cautious approach it becomes clear that the place of occurrence as described by the witnesses is such which had fields nearby and the actual place of assault itself appears to be a fields having banana plantation and those plants were of sufficient height. Had the place of occurrence not been covered by such kind of crops of banana plants there could have been many persons who could have seen the occurrence itself which had taken place close to a non-metal road but no eye witness has come forward. The houses of the witnesses are situated at a distance of about 200-250 cubic at the minimum and even if they heard the sound of the injured and came running, it is difficult to believe that the assailants would not hide themselves in the field nearby and make good their escape without being apprehended and would rather wait to be seen by the witnesses while fleeing away. The addition of name of a third accused Om Prakash Singh creates further doubt regarding credibility of the prosecution case itself because apparently he has been implicated with a clarification that as per the deceased he was only standing at the time of the alleged occurrence. In the fardbeyan there is no mention that the informant saw the appellants Manoj Singh and Sunil Singh fleeing away with any weapon. If an occurrence of the nature alleged takes place young persons as these two appellants were at the time of alleged occurrence, are in natural course of event expected to run away from the place. The trial court judgment discloses the age of appellant. Sunil Singh on 25.4.2006 as 21 years and of appellant Manoj singh as 25 years. The occurrence had taken place on 19.3.1999. Hence, the age of aforesaid two appellants as ascertained by the trial court, makes them aged about 14 and 18 years on the alleged date of occurrence. 12. The trial court judgment discloses the age of appellant. Sunil Singh on 25.4.2006 as 21 years and of appellant Manoj singh as 25 years. The occurrence had taken place on 19.3.1999. Hence, the age of aforesaid two appellants as ascertained by the trial court, makes them aged about 14 and 18 years on the alleged date of occurrence. 12. In a case of circumstantial evidence the motive plays an equally important role and as noticed earlier, in this case the earlier motive alleged by the prosecution appears to have been given a go by and subsequently another motive has been alleged that father of appellant, Sunil Singh had refused to return a loan of Rs. 7000.00 to the deceased and Sunil Singh had threatened the deceased because the deceased had demanded the loan from his father. No reliable material is available in support of either of the two alleged motives and the shifting of motive creates further doubt regarding the reliability and acceptability of the prosecution case. 13. In this case the attention of several witnesses have been drawn towards their earlier statements before the police and many of the questions were of significant nature as to whether the witness had stated before the police that he had seen the appellants running away near the place of occurrence. Non-examination of the Investigating Officer in such a situation appears to have caused prejudice to the defence. The defence could not test the claim of the informant that his statement was not recorded by the Sub Inspector of Police although he had gone to the police Station at 6.00/6.30 in the evening and even when the Sub Inspector had come to the Hospital at about 8.00 pm on the date of occurrence. 14. Besides the apparent delay in lodging of the fardbeyan and the FIR the attention of the Court has been drawn to the inquest report and the post mortem report to show that in the inquest prepared on 20.3.1999 at 8.15 A.M. there is no mention of either the PS Case number or even to the fardbeyan of the informant, Indradeo Tatma whereas in the post mortem report prepared on that date at 12.10 P.M. although the PS case number is not mentioned there is a mention of fardbeyan of Indradeo Tatma. The time of the fardbeyan is alleged to be 8.00 A.M. on 20.3.1999. The time of the fardbeyan is alleged to be 8.00 A.M. on 20.3.1999. So in normal course even if the case number was not given because the formal FIR was lodged at 9.00 A.M., the inquest report should have contained at least a reference to the fardbeyan of the informant, Indradeo Tatma and indeed, it is surprising that without any such reference in the inquest report a copy whereof is forwarded to the doctor who is to.conduct the autopsy, how such a reference of fardbeyan of Indradeo Tatma was made in the post mortem report. These facts coupled with the fact that copy of the FIR was produced before the court at Araria itself on 22.3.1999, after more than 24 hours are significant and create some further suspicion. 15. In the aforesaid fact and circumstances, the reasoning of the trial court that since the defence has not given a very plausible explanation as to why they could be falsely implicated hence the prosecution case should be accepted, does not appear proper and acceptable. The enmity which was essential for accepting the prosecution case on the basis of circumstantial evidence had to be treated as a double edged sword and in view of aforesaid discussion, the same pleas of enmity which were raised against the appellants should have been considered against the prosecution because of a reasonable doubt that since there was no eye witness of the occurrence the identity of the real assailant may not be known. In such a situation, there can be probability of implicating those against whom there may be only suspicion because of some enmity. 16. In view of all the aforesaid discussions, it is found that the orders of conviction against the appellants and sentence awarded to them are not sustainable and the same are set aside. The appeals are allowed. The appellants are acquitted of all the charges. It appears that appellant, Manoj Singh is in jail custody. He should be released forthwith if not required in any other case. The remaining two appellants, namely, Sunil Singh and Om Prakash Singh, who are on bail, shall stand discharged from their liabilities of the bail bonds.